posted at 8:53 pm on June 29, 2012 by Allahpundit

Roberts’s opinion, far from being an act of cowardice or betrayal, is true to the tradition of the early Republic, when the Supreme Court exercised the power of judicial review to strike down federal statutes only very rarely…

There is a larger point. If the only way Americans can defend their liberties is to hide behind the verbiage of a Supreme Court opinion, it’s already too late for freedom here.

***

Conservatives who are trying to salvage a little “hope and change” from Chief Justice John Roberts’s disastrous ruling in the Obamacare case yesterday argue that the limits the Court placed on the Commerce Clause and the power of the federal government vis à vis the states are victories for conservatives in the long run. But in this case, the short run is the long run: Obamacare will change our society forever–and not for the better.

Liberals are celebrating, not just because Barack Obama’s presidency is no longer just a waste of time, but also because they believe that people will never reject entitlements once they have them. Evidence from around the world proves them right.

This, by the way, is exactly what the Warren Court of the 1950s and 1960s failed to do. Insufficiently concerned about political fallout, the liberals on that court plunged ahead with leftist policymaking from the bench. As a consequence, conservatives grew acutely aware of the dangers inherent to liberal judicial activism, organized politically to fight back, and thus was ultimately born the Rehnquist Court, which rolled back many of the excesses of the Warren years.

But how do conservatives continue their judicial project without similarly inflamming the left and stalling their own agenda in its tracks? Well, just maybe Chief Justice John Roberts showed the way yesterday. It’s all about taking opportunities as they present themselves, not over-reaching, and playing the long game.

***

[I]f the underlying mandate is otherwise unconstitutional, as Roberts concluded, how does adding a penalty make it okay? Under this precedent, Congress could theoretically mandate anything it wants and slap on a nominal penalty and defend it in Court as a tax after the fact. To use a popular example, the government can now still force you to purchase broccoli, as long as the punishment is a fine rather than imprisonment…

In a broader sense, this case was testing the assumption that the Supreme Court would never invalidate a major act of Congress. Even if Roberts had only agreed to strike down the mandate, it would have sent a powerful message that the Supreme Court is willing to protect the Constitution from further encroachments. But I fear when all is said and done, after this case, future lawmakers will still feel confident in the assumption that they can pass whatever they want, and if the legislation is major enough, the Supreme Court will find some sort of excuse to uphold it.

***

Some will suggest that this is no victory at all, given the Court’s ruling that the money one must pay for failing to obtain insurance can be supported as a use of Congress’s taxing power. However, by confining within the taxing power the ability of Congress to adopt such schemes, the Court has greatly limited Congress’s ability and political appetite to attempt them in the future…

Another thing to note is that Chief Justice Roberts’s opinion on the taxing power is limited. He noted that it could not be considered punitive because the amount citizens are required to pay for not having insurance is far less than they would have to pay to obtain insurance. He strongly suggests that, if Congress were to require citizens to pay an amount greater than the costs of insurance, that would constitute a penalty, and thus would be unconstitutional.

***

I would find this perspective [that Roberts’s opinion was a victory for smaller government] considerably more persuasive if I could envision how, exactly, this war of “slow constriction” is supposed to play out. Does anyone really believe that a Roberts-led Court is likely to revisit the constitutionality of the major post-New Deal social programs? That it’s going to overturn child labor laws and minimum wage laws, or shutter regulatory agencies? Whatever precedent was set yesterday, that kind of genuine counter-revolution seems highly unlikely…

In an intellectual sense, the logic of the health care mandate may indeed have been “pregnant with rampant statism,” as Will puts it. But in terms of practical politics, the health care bill was itself the most statist act that’s likely to pass Congress over the next decade at least, and maybe in John Roberts’ lifetime. And by upholding it, Roberts handed liberals a victory in the scope-of-government war that matters most to them, while at worst setting them up to lose some less important skirmishes somewhere down the road.

***

In his remarkable health care opinion Thursday, the chief justice of the Supreme Court restrained the power of his own institution. He decided not to use judicial power to overrule the democratic process. He decided not to provoke a potential institutional crisis. Granted, he had to imagine a law slightly different than the one that was passed in order to get the result he wanted, but Roberts’s decision still represents a moment of, if I can say so, Burkean minimalism and self-control…

What did Roberts get? Institutional respect for the Court from people who have no respect for the Courts unless they win? That’s not a prize one can count on to last long. If you think liberals we say, “we’ll let it slide next time we lose a 5-4 decision and promise to never again push the boundaries of the Commerce Clause because Roberts gave us ObamaCare” you’ve missed the last 80 or 90 years of liberalism and the courts. Maybe I missed something but the New Deal and Warren courts* were happy to overturn decades and decades of law and never felt the need to “throw a bone” to conservatives (or people who thought the words of the Constitution had some set meanings).

There are probably five votes to uproot the entire campaign finance system, a decision that would make Citizens United look like small fry. And there are probably five votes to invalidate Section 5 of the Voting Rights Act.

I don’t think invalidating the ACA would have affected the court’s legitimacy that much, at least outside of liberals in the legal academy. But taken as a whole, this series of decisions really might have irrevocably hurt the court’s reputation for independence.

But Roberts has something of an ace up his sleeve now. Accusations of hyper-partisanship are much harder to make against him, and he has more freedom to move on these issues.

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They need to stop writing this flowery garbage about Roberts and tell me the impact, real impact, of this ruling. It’s very telling that the elite media is astonished that we, of the great unwashed, are so dissatisfied with their information. If I wanted to listen to long dissertations that mean nothing, I’d listen to Obama.

It looks like I need to take just a moment to clarify something. On this thread last night I kept sensing an out of syncness with many of the other commenters here. After re reading the thread this a.m. I believe I understand why. Many of you are still lamenting what should have been, and are still demonstrating your frustration with the court, in particular Roberts. I’m not with you on that. I woke up to the decision as many did, read it, realized it, and for me it fell into just another bookmark in the history of the issue. In other words, it is therefore it will not change. I am quick to move on from things that do not work and even quicker to move on towards those things that are pertainant to working. Sure I like all of us are am still fleshing out what has occurred, but it is not the overreaching interest of mine to know so much about why, only about that which is. The majority of my concern is on what to do with what we have. I will shy away from that which is not helpful. Roberts made a decision which is certainly arguable was the wrong one. Nothing we do will change that. I moved on. My main objective is how to proceed. My apologies if that was not understood. I should have been paying , closer attention to the thread. Admittedly I was distracted. My apologies. Everyone deals with trauma differently, injury heals differently for everyone, pardon me for having moved past the what ifs.

Bmore on June 30, 2012 at 10:11 AM

Well said my friend.

And I agree with you Cindy..They will ramble on..I will ignore.
People are about self interest..as I work in this industry I see more and more anger growing. Premiums are up, my small business’s have regs out the wazoo, and to even keep from dropping employer paid plans-they are choosing plans with high out of pocket costs. The employees are paying more for plans with less benefit and coverage. They are feeling the burn… sometimes people need to get burned to see how something will impact them personally. They are seeing that O care wasnt what they thought-or sold to them. The people of this country will react when they feel the hot poker. They dont give a rats ass what the elites/media say or spin. It impacts them and their wallet. My take. And like Mr Bmore..I take every opportunity to explain to them WHY their little utopian O Care fantasy is/was bullshite. I always start by saying..due to the new healthcare legislation enacted aka Obamacare…. I pour salt in that wound every chance I get. in 09..I had plenty of people ask my where their free plan was..Idiots..it was all I could do to remain professional.

Meanwhile..Seniors will see the burn in their medicare advantage plans (supplements). I just added that to my portfolio with certifications. When that hits..the seniors will find out how burned they are to. The O Care timeline isnt in full force yet..the citizens that have been asleep will soon be awake. Mess with peoples $..and they react quick.

I work with an Obama supporter and she was talking on the phone and said that it is a “class thing” that the people who have insurance don’t want those who don’t to get it. How does that even make sense. She also thinks that all medical and pharmaceutical industries should be none profits. No one should prosper off of someone’s illness, is how she looks at it. When I asked her why someone talented in science who found a way to cure or relieve pain and suffering shouldn’t benefit but that sports stars salaries are limited only by the free market. Her answer was that they already have profited. I don’t even know what that means and she couldn’t explain it. Better to let it drop.

You know the high risk pools set up for the uninsured..
People are finding out (when I send them there) that there is plenty of criteria to qualify..not what people thought either..
A. You have had to have no coverage/uninsured for 6 months
B. You cant have an employer offered health plan offered to you..cant afford it? Too bad.
Thats just a couple items..people not happy. I don’t have anything to do with the Govt, so I send people there when asked.

So, not what people thought…a nice little mess and people are angry and its confusing..cause it is by state. I say sorry..cant help you. Call the Govt. We (in my field cant help them) so they are lost as what to do or what this all even means-once they find out what it takes to qualify..which I do mention-not happy.

They need to stop writing this flowery garbage about Roberts and tell me the impact, real impact, of this ruling. It’s very telling that the elite media is astonished that we, of the great unwashed, are so dissatisfied with their information. If I wanted to listen to long dissertations that mean nothing, I’d listen to Obama.

Cindy Munford on June 30, 2012 at 2:16 PM

Cindy, did Roberts vote 5-4 for 0bamaCare as Constitutional CC-wise, yes, or no?

Ok, no, he didn’t. Therefore, either the 4 Dems who voted with him that 0bamaCare was Constitutional agree with him that it’s a tax, or they disagree, and they lose the vote 4-5. What do you believe the Dems will say when faced with that truth?

I’m beginning to understand the theory being proposed as to Robert’s motivations and intentions but I am coming up hard and fast against the question of whether it was his place to do so, assuming his conscious motivations WERE as noble as people seem to be making them.

If so, isn’t he simply engaging in his form of judicial activism and not fulfilling the Constitutional role of the Supreme Court?

Cleombrotus on June 30, 2012 at 8:45 AM

I don’t know if you saw an earlier post of mine in this thread where I mentioned Kasich vs. Walker on PSUs, and how there’s more than one way to skin a cat – that’s what’s on my mind as I analyze the decision.

I am not yet sure what I fully think about Roberts’ ruling, but I do know it is not the disaster some are screaming about, even if I end up finding that it wasn’t the correct/best one.

Nothing you said she said even makes sense..sounds like a major idiot. Bless you Cindy..for having to listen to that tripe everyday. She sure sounds like an expert..;)
Is this the one you mentioned thinks your a racist?

Oh yeah, we with coverage dont want others to have it..alrighty then.
I work with all types of businesses and consult on their benefit packages. People of every “class” and demographic. I sit with employees and explain their choices and what will work best for them personally,based on their needs. I spend everyday trying to help and inform people. They have wonderful benefits but it depends on if you work for an employer that can even afford to offer them anymore and what they contribute to the employees premium.

Is it the commenter Wolly here that mentioned his employer dropped benefits due to cost and he lost coverage? I see that happening a lot..small businesses are hurting so bad right now and trying to make enough for overhead and stay a float. Certain industries..mainly hospitality here have cut out benefits completely. This is not about class..nor is this about insured people wanting to make sure others have no coverage. If she is concerned about the welfare queens..all their multiple children are on Florida Kid care/Medicaid.

I dont even know what to say..you cant respond to someone like that who makes no sense and seems to understand nothing. To her..I am sure everything is about classsssss and racccccccce. Big surprise. Uninformed but spewing BS all day.

I will say..after 13 years in this biz..some reform is needed and there are issues. But O care solved none of them. Medical costs are still soaring and regs are worse. There is less consumer choice in plans,as well. More docs are dropping out as network covered physicians. Especially Medicare.
Ins co’s have slashed my compensation..and I refuse to be out there helping people understand their “Govt O options”. Aint my job. Get rid of my business and people dont know what the hell to do. I help business and people understand how to navigate through so much. Regardless of Race,Class,or anything else. I care about people and helping them with their options,choices and decisions on a complex subject.

Its a sad state of affairs-your co-worker adds to it.

May I suggest buying the book, Arguing with Idiots to you? :)

Honestly Cindy..I highly doubt anything you say to her will make any difference….she is a lost cause. Scary that we have fellow citizens like this. I find it hard to even say they are my fellow Americans anymore. The lens she looks at the world through is distorted.

LOL! She told me she wanted to go to school for accounting but recently she said she wanted to be a social worker. If it will make her feel better to earn less and work harder, I’m all for it.

Cindy Munford on June 30, 2012 at 3:53 PM

Is she young? Idealistic still?

LOL…yeah..I worked in the criminal justice field after getting my degree..worked my ass off..for shi$$y money and got my eyes opened real fast. All I dealt with was red tape and felt I did nothing of value..could barely pay my rent. I worked with Social Workers..some do good but I saw such waste and inefficacy..Govt way to involved in people personal business-WHEN they should not be. Let her go work in the broken system. Maybe what she needs..a nice dose of reality. LOL..hmm..skip that accounting degree sister and coddle the welfare queens. Cause, she will feel good about herself and is helping to heal the world..You Betcha! ;)

They need to stop writing this flowery garbage about Roberts and tell me the impact, real impact, of this ruling. It’s very telling that the elite media is astonished that we, of the great unwashed, are so dissatisfied with their information. If I wanted to listen to long dissertations that mean nothing, I’d listen to Obama.

Cindy Munford on June 30, 2012 at 2:16 PM

They can spin and write as many articles that they want..including how Roberts is so wise like Yoda..we just dont understand his brilliance.
The impact will show itself. We will have to wait and see.
Just like the 2000 + page O Care legislation passed..
It was hard for anyone to figure out everything it would really impact..but as the O Care timeline moves along..I am seeing the real impact everyday. This impacts so many things- and insurance is complex. From individual policies,group policies, regulations, HDHP plans, impacts to Flexible spending accounts, Medicare supplements..taxes, Mini med plans (all those offered not deemed major medical by O Care..all those waivers that were issued..in hospitality industry mainly) As you notice so Many Restaurants/food chains- named in the waivers..that is why.

Anyway..I am with you on the flowery garbage..I’ll be bracing for the real impact. I hope I am wrong and Roberts was brilliant..don’t see it. I see a coward who did not do his job.

Always a pleasure Cindy- would love to have a cup of coffee with you and discuss further. Careful what I say here though..have to stay private to a point. Much I cant discuss for various reasons…wish I could.
Sorry you work with a loon. Luckily, I work in my home office mainly..I am protected now from listening to daily ramblings from loony co-workers. I remember the feeling though.
;)

Luckily I am done for a while, heading up to Virginia soon. She’s okay, just a product of our current society and what we owe her.

Cindy Munford on June 30, 2012 at 4:27 PM

Ah, good for you..some relief from this heat and storms. Thats right..you said job was temporary. Have a safe trip to VA. Enjoy.
You are so graceful..She would make my head spin off…I would be cursing her out. :) Low on tolerating some these days. I have overdosed these past few years.
I will see you around soon,I am sure.
Be well Cindy.

Thanks, I’ll still be here at HotAir and unfortunately it has been hotter up there than here. Hoping that it is just an anomaly and not the pattern for the summer. Hard to imagine leaving Florida in July, August and September would be the wrong thing to do. I have enjoyed the beauty of our really full retention pond looking like a real lake.